Order on C.M.A. No,563 of 1996 ' ANWAR ZAHEER JAMALI, J.--- By this application under section 3 of the Limitation Act read with Order XLI, rule 1 and section 151, C.P.C. Moved by the respondent on 23-5-1996, he has prayed for dismissal/rejection of this appeal, being time-barred and not maintainable in law. It has been stated in the application that the present appeal, when presented before this Honourable Court on 18-9-1995, was not accompanied with the certified true copies of impugned judgment and decree dated 5 -7-1995, to meet the mandatory requirement of Order XLI, rule, 1, C.P.C., as only photostat copies were filed. In this regard, respondent had firstly raised objection before the Court on 11-12- 1995, whereafter certified true copies of judgment and decree were filed in the office on 12-12-1995, but by that time the appeal had become time-barred by eighty-two days. The respondent further stated in the application that appeal without certified true copy of the decree is barred under the provisions of Order XLI, rule 1, C.P.C., therefore, it is liable to be dismissed as such.
2. Counter-affidavit to this application has been submitted on behalf of the appellant on 20-10- 1996, wherein it has been stated by them that the application moved by the respondent is just an attempt to harass the appellant, to misguide the Court, and to avoid the decision of the controversy on merits of the case. It has been further stated that the photostat copies of certified true copies of judgment and decree duly attested by the appellant's Advocate were attached with the memo. Of appeal at the time of presentation of appeal on 18-9-1995, within the prescribed period of limitation, therefore, the appeal is not time-barred. It has been also stated by the appellant that at the time of presentation of appeal no such objection regarding filing of photostat copy of decree or non-filing of certified true copy of decree was raised by the office, therefore, appellant cannot be penalized at this belated stage.
3. In his affidavit in rejoinder, the respondent has again reiterated his plea contained in the application (C.M.A. No,563 of 1996) and stressed that filing of appeal without certified true copies of judgment and decree and filing of certified, true copy of the decree after expiry of the prescribed period of limitation has made the appeal time-barred and not maintainable in law.
4. Mr. H.A. Rahmani, learned counsel for the respondent, addressing the Court with reference to this application, read before us the provisions of Order XLI, rule 1, C.P.C. And vehemently contended that the requirement of filing of certified true copy of the decree along with the memo. Of appeal is mandatory, which fact is evident from the language of Order XLI, rule 1, C.P.C. Wherein the Appellate Court has been given discretion only for dispensing with the filing of copy of judgment, but no such discretion has been conferred for the purpose of decree. Referring to the facts of the present case, learned counsel contended that the period prescribed for filing of appeal against the judgment of the learned Single Judge is twenty days, which is to be computed from the date of signing of decree, and further time consumed in obtaining certified true copy of the decree is to be excluded for that purpose. In the instant case; though the appeal was presented before this Court on 18-9- 1995 within time, but at that time it was not accompanied with the certified true copy of decree to meet the requirement of law, while by the time certified true copy of decree was filed by the appellant in Court on 12-12-1995 the period of limitation has already lapsed and thus, appeal is liable to be dismissed as time-barred. Learned counsel reiterated that the provisions of Order XLI, rule 1 are mandatory in nature and this view is fortified from the following judgments:--
(1) 1981 CLC 1479; (2) 1986 MLD 2717; (3) PLD 1986 Quetta 11; (4) 1988 CLC 514; (5) 1990 MLD. 2094; (6)
1991 CLC 1288; (7) PLD 1993 Lah. 439; (8) 1993 CLC 1; (9) 2002 CLC 1177; (10) 2002 YLR 1592; (11) PLD 1983 Pesh. 215; (12) AIR 1929 Lah. 771; (13) AIR 1961 Pat. 129; (14) AIR 1972 Rajisthan 123.
5. A review of above cited cases reveals that, broadly speaking, in the above cited cases it has been held that filing of certified true copy of decree is mandatory requirement in terms of Order XLI, rule 1, C.P.C., therefore, its non-compliance would be fatal to the maintainability of appeal.
6. Conversely, Mr. Rasheed A. Razvi, learned counsel for the appellant, contended that admittedly the memo. Of appeal was presented in Court on 18-9-1995, within the prescribed period of limitation, and it as accompanied with photostat copies of certified true copies of judgment and decree, instead of certified true copies. The appellant has also submitted an application under section 151, C.P.C. Along with the memo. Of appeal, seeking exemption from filing certified true copies of judgment and decree and other documents, photostat copies whereof were filed with the memo of appeal, being C.M.A. No,748 of 1995, which was allowed by the Court on 3-10-1995 (wrongly typed as 3-9-1995). In such circumstances, non-filing of certified true copy of judgment and decree at the time of presentation of appeal is not fatal and it will not make the appeal barred by limitation or not maintainable in law, as urged by Mr. Rahmani. Learned counsel further contended that as soon as for the first time such objection was raised by the respondent before the Court on 11-12-1995, even without any directions of the Court, next day i,e, 12-12-1995, certified true copies of judgment and decree were filed in Court along with the statement, which shows the promptness and bona fide of the appellant. Mr. Rasheed A. Razvi next contended that the objection of non-filing of certified true copy of the decree, when its attested photostat copy was filed with the memo. Of appeal, is hypertechnical in nature, which should not be allowed to prevail, to deprive the appellant from seeking adjudication of his case on merits. To show a glimpse about the merits of the appellant's case, learned counsel also referred the judgment of Division Bench of this Court dated 15-2-2000, whereby this appeal was allowed on merits. He contended that the Honourable Supreme Court of Pakistan vide its judgment dated 4-6-2003 has set aside such judgment earlier passed in this appeal only for the reason that the two applications which have been now heard by this Bench were not decided and the rule of propriety demanded that before deciding the main appeal on merits such applications, touching to the maintainability of the appeal, should have been decided. Learned counsel also submitted that in case the appeal accompanied with the photostat copy of certified true copy of the decree was not in accordance with the requirement of the relevant rule then the office should have raised objection in this regard. Referring to the language of Order XLI, rules 1, 2 and 3, C.P.C. Learned counsel further submitted that where the intention of Legislature is to make procedural requirement mandatory, then, for its non- compliance, penalty is provided, as is evident from rules 2 and 3 of Order XLI, but it is not the position in respect of Rule 1 of Order XLI, as no penal consequences for non-filing of certified true copy of the decree along with memo. Of appeal have been provided. He also contended that mere reference in the language of Order XLI, rule 1, empowering the Appellate Court to dispense with the filing of copy of judgment will not justify an interference that the Appellate Court was denuded of its powers for allowing filing of certified true copy of the decree at some later stage, moreso, when attested photostat copy of the same was already filed with the memo. Of appeal.
7. In support of his submissions that in such circumstances, the appellant cannot be non-suited for this technical objection. Learned counsel placed reliance on the following cases:--
(1) AIR 1961 SC 832; (2) 2004 SCMR 707; (3) 1985 CLC 1711; (4) PLD 1962 SC 382; (5) 2003 SCMR 181 (6)
8. A review of above cited cases reveals that in the first case from Indian jurisdiction, while holding that filing of certified true copy of decree along with the memorandum of appeal is mandatory and in the absence of the decree filing of appeal would be incomplete, defective and incompetent, it was further observed by the Supreme Court of India that no hard and fast rule of general applicability can be laid down for dealing with appeals defectively filed under Order XLI, rule 1.
Appropriate orders will have to be passed having regard to the circumstances of each case, but the most important step to take in cases of defective presentation of appeals is that they should be carefully scrutinized at the initial stage soon after they are filed and the appellant required to remedy the defects. If the appeal has passed through the stage of admission through oversight of the office, then the only fair and rational course to adopt would be to adjourn the hearing of the appeal with a direction that the appellant should produce the certified copy of the decree as soon as it is supplied to him. In the second case where certified true copy of judgment and decree of the trial Court were not filed along with the memo. Of appeal but filed subsequently, and the Appellate Court had dismissed the appeal, being incompetent on that account, and the High Court in exercise of its revisional powers had set aside such order and remanded the case to the Appellate Court for its decision on merits, leave to appeal against the judgment of the High Court was refused by the apex Court with the observations that at the time of presentation of appeal office had not pointed out such deficiency to the appellant, who had filed certified copy of trial Court judgment and 'decree after obtaining the same, thus, in such circumstances the plea that appeal was incompetent was not apt. It was further held that the Court should lean in favour of deciding the cases on merits and technical knock out should sparingly be resorted to. In the third case, where at the time of filing of appeal, decree-sheet was not filed with the memorandum of appeal being not available at the time of filing of appeal, it was held that when the entire file of the case including original decree-sheet having been summoned became part of record along with memo.
Of appeal, the appeal would not run out of limitation in the circumstances, more particularly when there was no element of contumacious negligence. In the remaining three cases cited at serial numbers 4 to 6, with reference to the concept of administration of justice and interpretation of statutes it was observed that mere technicalities, unless offering any insurmountable hurdle should not be allowed to defeat the ends of justice and the logic of word should yield to the logic of realities. It was further observed that the statutes should be interpreted in the manner, which suppresses the mischief and advances the remedy.
9. Further refuting the submissions of Mr. H.A. Rahmani, learned counsel urged that the present High Court appeal filed under section 3 of the Law Reforms Ordinance, 1972, read with section 39 of the Arbitration Act, 1940, is not an appeal under section 96, C.P.C. In its strict sense, therefore, it is yet another ground for consideration before this Honourable Court for the purpose of examining the scope of procedural compliance of Order XLI, rule 1, C.P.C. In such appeal, which is accompanied with the photostat copy of the certified true copy of the decree and not the original certified true copy of decree. In the end, learned counsel contended that as a general rule the procedural law are directory and not mandatory in nature, therefore, non-compliance of such provisions of law, unless the relevant statute provides for some penal consequences will not follow any penal consequence, that too, so harsh that the appellant may be deprived of his legal and constitutional right to seek redress of his grievance and justice from a Court of law on the merits of his case.
10. We have carefully considered the arguments advanced by the learned counsel, perused the relevant record and also the case-law cited at the Bar. The undisputed facts relevant for the disposal of C.M.A. No.563 of 1996 are that:-
(a) This H.C.A. When presented in High Court on 18-9-1995 was accompanied with photostat copies of certified true copies of impugned judgment and decree;
(b) The original certified true copies of impugned judgment and decree were not filed at the time of presentation of, appeal but no objection to this effect was raised by the office at that time;
(c) The memo. Of appeal was accompanied with an application under section 151, C.P..0 No.748 of 1995), seeking exemption from filing certified true copies of the documents filed with the appeal, which were allowed by this Court vide order, dated 3-9-1995, but subject to all just exceptions;
(d) For the first time objections as regards the non-filing of certified true copy of decree along with the memo. Of appeal was orally raised by respondent on 11-12-1995;
(e) In response to such objection, certified true copies of, impugned judgment and decree were filed by the appellant in Court on 12-12-1995, without any particular direction of the Court in this regard;
(f) Listed application seeking rejection/dismissal of appeal on the ground of non-filing of certified true copy of decree at the time of presentation of appeal was moved by the respondent on 22-5- 1996.
11. Based on these facts, the moot point for consideration before us is that whether in the facts and circumstances of the present case, when the appeal is pending before this. Court for almost one decade and during this period on 12-12-1995, even before filing of listed application, the appellants have shown their promptness and bona fide by production of certified true copy of the decree to cover up any procedural lapse on their part, they shall be penalized/non-suited due to such pure technical objection of non-compliance of the provisions of Order XLI, rule 1, C.P.C., or in the larger interest of justice, such objection should not be allowed to prevail, delay in meeting the requirement of Order XLI, rule 1, C.P.C. Be condoned and the appeal should be heard and decided on merits.
11. Indeed, in the plethora of case-law cited by Mr. H.A. Rahmani, the view taken by the various superior. Courts is that the requirement of filing of certified true copy of decree with the memo. Of appeal is mandatory, and its non-compliance will be fatal to the maintainability of appeal, but on the other hand, in the other set of cases cited by Mr. Rasheed A. Razvi, considering the peculiar facts of each case, a distinction has been made to this rule to save the appeals from technical knock out. Having considered the peculiar facts and circumstances of the present case and the diverse view expressed in the judgments cited by the learned counsel, with reference to import of Order XLI, rule 1, C.P.C., as discussed above, we are of the opinion that though the provisions of Order XLI, rule 1, C.P.C. Are mandatory in nature, but for penalizing a party for its non-compliance no rigid/inflexible rule of application can be laid down. Moreso, when the relevant provisions of law itself do not provide any penal consequences for its non-compliance. In the instant case, though the appellant failed to file original certified true copy of the decree along with memo. Of appeal presented before this Court on 18-9-1995 within the prescribed period of limitation, but the photostat copy of such decree accompanied with the memo. Of appeal was accepted by the office without any objection to that effect. Not only this, but this Court while passing order, dated 3- 10-1995 on C.M.A. No,748 of 1995 also overlooked this important legal aspect and allowed exemption to the appellant from filing certified true copy of decree, subject to all just exceptions. It is also a matter of record that as soon as the respondent raised objection about non-filing of certified true copy of decree by the appellant in Court, such objection was promptly met by the appellant by placing on record the certified true copy of the decree before the Appellate Court on 12-12-1995. Thus, no element of contumacy can be justly attributed to the appellant for non-filing of certified true copy of decree in the first instance at the time of presentation of appeal.
13. Besides, it is pertinent to mention here that, at this stage, after filing of certified true copy of decree in Court on 12-12-1995, the issue of non-fulfilment of the requirement of Order XLI, rule 1, C.P.C., is no more alive before us, but the issue for consideration before us now is for condonation of delay occasioned in this regard due to the filing of photostat copy of certified true copy of decree at the time of presentation of appeal. In this regard, looking to the overall facts and circumstances of the present case, we have no hesitation to hold that judicial discretion for condonation of delay has to be exercised in favour of the appellant to save failure of this appeal from technical knock out.
14. Considering all these aspects of the case and following the principles enunciated in the cases discussed above, more particularly the views expressed by the Honourable Supreme Court of Pakistan in the cases cited by Mr. Rasheed A. Razvi, we are of the firm opinion that the listed application merits no consideration and it is liable to be dismissed as such. .
Order on C.M.A. No,793 of 1996 ' By this application dated 4-8-1996, moved under section 4 of the Court Fees Act, 1870, the respondent has prayed for dismissal of the appeal on the ground that due to the non-payment of required court-fee on the memo. Of appeal it has become time-barred.
2. To this application, counter-affidavit dated 20-10-1996 has been filed on behalf of by the appellant, wherein they have disputed and denied the assertions of the respondent that the memo. Of appeal is insufficiently stamped. According to the appellants case, the appeal preferred by them is covered by section 39(vi) of the Arbitration Act and accordingly proper court-fee has been paid, as prescribed in schedule 11 Article 12 clause (iv) of the Court Fees Act.
3. The respondent in his rejoinder is strict to his earlier stand about insufficiency in the payment of court-fee on the memo. Of appeal, as the present appeal, for the purpose of court-fee is governed by schedule 1, Article 1 of the Court Fees Act, which requires payment of ad valorem court-fee.
4. Mr. H.A. Rahmani, learned counsel for the respondent, while arguing this application contended that the court-fee stamps of only Rs,20 have been affixed on the memo. Of appeal though the memo of appeal was required to be accompanied with the court-fee to be calculated on ad valorem basis. In this regard, he made reference to section 17 of the Arbitration Act to show that when award is made rule of the Court, as in the instant case, then it is to be followed by a decree.
However, when the learned counsel was confronted with the provisions of Order VII, rule 11(c), C.P.C., that in such circumstances, even if his contention regarding insufficiency of court-fee paid by the appellant is accepted then the proper course available would be to afford an opportunity to appellant in the first instance for payment of deficit court-fee and without that plaint/the suit or the memo. Of appeal as the case may be, cannot be rejected, learned counsel in view of the judgment reported as PLD 1984 SC 289, did not dispute this position. However, he made further reference to the case reported as 1997 SCMR 919 to show that where the Court comes to the conclusion that non-payment of proper court-fee by a party was deliberate and contumacious act on his part then the Court may dismiss the appeal instead of allowing an opportunity for payment of deficit court-fee.
5. Mr. Rasheed A. Razvi, in his reply arguments, made reference to Schedule II, Article 12, clause (iv) of the Court Fees Act (as it was at the relevant time) and contended that payment of court-fee in the present case is in-accordance with law and in any case it could be termed only as bona fide dispute regarding payment of required court-fee, therefore, till this issue is examined and decided by the Court no element of contumacy could be attributed to the appellant in this regard. He further urged that if the Court comes to the conclusion that the court-fee stamp of Rs,20 affixed on the memo. Of appeal, as fixed court-fee under Schedule II, Article 12 of clause (iv), is not sufficient or proper payment of court-fee in the present appeal, then this Court has to allow some reasonable time to the appellant for making good such deficit payment of court-fee, as held in several Supreme Court judgments. To fortify this legal position, learned counsel made reference to the following cases:--
(1) PLD 1984 SC 289; (2) PLD 1985 SC 341; (3) 1989 SCMR 1791; (4) PLD 1992 SC 404; (5) 1991 SCMR 207;
(6) 1994 SCMR 1756; (7) PLD 1994 SC 688; (8) 1989 SCMR 58; (9) 1990 SCMR 1723; (10) 2003 SCMR 157; (11) 1991 SCMR 221.
6. We have carefully considered the arguments advanced by the learned counsel for the parties, perused the relevant provisions of the Court Fees Act, 1870, with reference to the facts of the instant case, and also the cases cited at the Bar. The submission of the learned counsel' Mr. H.A. Rahmani seems to be correct to the extent that in terms of the relevant provisions of the Court Fees Act, 1870 the appellants were required to make payment of court-fee on ad valorem basis according to the value of subject-matter of the appeal, and affixation of court-fee stamp of Rs,20 on the memo. Of appeal is not sufficient. However, Mr. Rahmani has not been able to persuade us that such mistake/omission of the appellant regarding non-payment of proper court-fee on the memo. Of appeal is either deliberate or contumacious act on their part. Accordingly, following the ratio of judgment in the case of Siddique Khan and 2 others v. Abdul Shakur Khan and another PLD 1984 SC 289 and various other cases of the apex Court cited by Mr. Razvi to support his plea that an opportunity is to be afforded to the party for payment of deficit court-fee, before dismissal of appeal on that account, we allow ten days' time to the appellant from the date of this order to make payment of proper court-fee on the memo. Of appeal. Application stands disposed of accordingly.